Legislative Process Spring 2009 Professor Carolyn Shapiro SYLLABUS

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1 Legislative Process Spring 2009 Professor Carolyn Shapiro SYLLABUS The syllabus is divided by assignment, not by class. Some assignments will likely take more than one class period to cover; some may take less. I will announce assignments for each class either at the end of the previous class or by . The syllabus is subject to change. In particular, handouts, problems, and practice exam questions will likely be added, as well as materials that reflect current events. Some readings may also be deleted or shortened. You should keep all handouts you receive as part of the course materials. All page numbers in the syllabus refer to the casebook, Eskridge, Frickey & Garrett, Cases and Materials on Legislation (4 th ed. 2007), unless otherwise noted. I. INTRODUCTION TO THE LEGISLATIVE PROCESS A. THE CIVIL RIGHTS ACT OF 1964 IN CONGRESS 1-38 History of the Civil Rights Act of 1964 How a Bill Becomes a Law Handout Civil Rights Act Timeline U.S. Const. Art. I, 1, 7-9; Art. II, 1 (first sentence), 2-3 Handout Problem on the Legislative Process B. THE CIVIL RIGHTS ACT OF 1964 IN THE COURTS Title VII of the Civil Rights Act of 1964 Griggs v. Duke Power Co. (4th Circuit opinion) Handout Griggs v. Duke Power Co., 401 U.S. 424 (1971) Perspectives on Griggs United Steelworkers v. Weber and Notes Handout Chief Justice Burger s Weber dissent Johnson v. Transportation Agency and Notes Handout Justice White s Johnson dissent Handout Problem on Sexual Harassment 1

2 C. CONTEMPORARY PROBLEMS IN MAKING LAW AND THE BALANCE OF POWER Federal Line Item Veto: Clinton v. City of New York and Notes Handout Materials on Impeachment II. LIMITATIONS ON THE LEGISLATIVE PROCESS IN THE STATES A. SINGLE SUBJECT RULE Note on Single Subject Rule Department of Education v. Lewis and Notes Handout Excerpts from Illinois Cases B. LINE ITEM VETO Note on Line Item Veto Rush v. Ray and Notes Handouts on Illinois Amendatory and Line Item Veto C. DIRECT DEMOCRACY Note on Direct Democracy St. Paul Citizens for Human Rts. v. City Council and Notes Handout Materials on Proposition 8 III. ELIGIBILITY TO SERVE IN CONGRESS A. CONGRESSIONALLY-IMPOSED QUALIFICATIONS Powell v. McCormack and Notes Handout Materials on the Appointment of Roland Burris B. QUALIFICATIONS IMPOSED BY STATES U.S. Term Limits, Inc. v. Thornton and Notes 2

3 IV. THE ETHICS OF DELIBERATION A. REGULATION OF CAMPAIGN FINANCE Structures of Campaign Finance and The Constitutional Framework Campaign Finance after Buckley and The Bipartisan Campaign Reform Act Notes on McConnell v. FEC (read through paragraph 3 on p. 290) Handout Current issues in campaign finance B. REGULATION OF CORRUPTION Bribery Statutes People ex rel. Dickinson v. Van de Carr and Notes Extortion and the Hobbs Act Handout Materials on Ethics Reform C. REGULATION OF LOBBYING Note on the Regulation of Lobbying Handout Materials on Lobbying Regulation V. PULLING THINGS TOGETHER: THE CONSCIENTIOUS LAWMAKER, ACCOUNTABILITY, AND THE CONSTITUTION Brest, The Conscientious Legislator s Guide... and Notes Handout Problem VI. STATUTORY INTERPRETATION AND IMPLEMENTATION A. READING A STATUTE Handout Handout Current text of Title VII, available at (read well enough to understand basic structure and to address the Problems) Problems on Title VII 3

4 B. STARE DECISIS Note on Stare Decisis and Statutory Precedents Flood v. Kuhn and Notes C. THEORIES OF STATUTORY INTERPRETATION: HISTORICAL DEVELOPMENT 1. Introduction and Background Hart & Sacks, The Legal Process and Notes Rector, Holy Church v. United States and Notes Caminetti v. United States and Notes Fishgold v. Sullivan Drydock and Repair Corp. Handout Justice McKenna s Caminetti dissent 2. Legal Process Theories Hart & Sacks, The Legal Process and Notes Notes on Judicial Correction of Legislative Mistakes United States v. Locke Eskridge, Dynamic Statutory Interpretation In the Matter of Jacob 740 n Note on Female Juror Cases Li v. Yellow Cab of California and Notes State of New Jersey v Pontiac Trans Am and Note 1 3. Plain Meaning and the New Textualism TVA v. Hill Notes on Hill, Griffin, and the Revival of the Plain Meaning Rule Green v. Bock Laundry Machine Co. and Notes Scalia, A Matter of Interpretation Notes 1 and 2 on the LSD Case and Ex Ante Thinking (Skim United States v. Marshall, , as needed to make sense of the Notes) 793 n Notes on New Textualism on the Court Chisom v. Roemer 4

5 4. Pragmatic Approaches to Statutory Interpretation Eskridge and Frickey, Statutory Interpretation as Practical Reasoning Note on the Funnel of Abstraction Notes on Public-Regarding Goals and Rent-Seeking Perez v. Wyeth Laboratories, Inc. and Notes Note 3 on the LSD Case and Ex Ante Thinking Breyer, ACTIVE LIBERTY, pp. 3-20, , What Does the Practitioner Do? Handout: Problem on False Claims Act D. DOCTRINES OF STATUTORY INTERPRETATION 1. Textual Canons Introductory Problem Maxims of Word Meaning and Association Grammar Canons The Whole Act Rule Handout Textual Canons Handout Problems on Textual Canons Note on Interpretive Directions in Statutes 2. Substantive Canons Types of Substantive Canons a. The Rule of Lenity The Rule of Lenity Muscarello v. United States McNally v. United States Notes on Muscarello, McNally, and the Rule of Lenity 5

6 b. The Avoidance Canon and Clear Statement Principles NLRB v. Catholic Bishop of Chicago Almendarez-Torres v. United States Notes on the Avoidance Canon Note on Congressional Reliance c. In Pari Materia, Repeal by Implication, and Whole Code Rule Lorillard v. Pons Morton v. Mancari and Notes FDA v. Brown & Williamson Tobacco Co. and Notes d. The Borrowed Statute Rule [if time] Zerbe v. State and Note 3. Debate Over Canons Llewellyn, Remarks on the Theory of Appellate Decision... Note on Intellectual Warfare Over Canons E. THE ROLE OF THE COMMON LAW Notes and Introductory Problem Smith v. Wade Notes on Common Law as Source of Construing Statutes F. LEGISLATIVE HISTORY 1. Legislative Context Leo Sheep Co. v. United States and Notes 2. Committee Reports Blanchard v. Bergeron Note on the New Textualist Critique of Committee Reports 6

7 3. Statements by Sponsors or Drafters of Legislation Note Montana Wilderness Ass n v. United States Forest Service I Notes on the First Checkerboard Case Kosak v. United States and Notes 4. Floor Debates Notes on Legislative Deliberation Handouts Floor Debate and Hamdan v. Rumsfeld 5. Legislative Inaction and Subsequent Legislative History Post-Enactment Legislative History Montana Wilderness Ass n v. United States Forest Service II Notes on the Second Checkerboard Case Legislative Inaction Review FDA v. Brown & Williamson Tobacco Co Note on Rejected Proposals 6. Ballot Initiatives (Again) Note on Interpreting Ballot Initiatives Handout Statutory Interpretation and Direct Democracy G. STATUTORY DRAFTING EXERCISE [IF TIME] 7

8 VII. PULLING THINGS TOGETHER: CONTEMPORARY STRUGGLES IN STATUTORY INTERPRETATION AND THE POWER OF THE JUDICIARY, CONGRESS & THE EXECUTIVE A. ADMINISTRATIVE DELEGATION, INTERPRETATION, AND IMPLEMENTATION Hampton v. Mow Sun Wong and Notes [if time] Chevron USA v. Natural Resources Defense Council MCI Telecommunications Corp. v. AT&T and Notes Note on Chevron and Stare Decisis Note on Deference to Agencies in the State Courts United States v. Mead Corp. [if time] Quo Vadis the Chevron Revolution? [if time] Breyer, ACTIVE LIBERTY, pp Handout Materials on Regulations B. PRESIDENTIAL SIGNING STATEMENTS AND CLAIMS OF UNCONSTITUTIONALITY Notes on Presidential Signing or Veto Statements Handout Presidential Signing Statements 8

The Regulatory State: Introduction to Legislation, Statutory Interpretation, and Administration Spring 2013 Professor Jodi Short

The Regulatory State: Introduction to Legislation, Statutory Interpretation, and Administration Spring 2013 Professor Jodi Short Office: McAllister 200, Room 310 Phone: 415.703.8205 E-mail: shortj@uchastings.edu